Koo Shew Wan (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Pratte J. and
Perrier D.J.—Montreal, May 23, 1973.
Immigration—Visitor to Canada refused permanent resi
dence for giving false information—Inquiry by Special Inqui
ry Officer—Deportation order not authorized—Appellant not
a person "seeking to come to Canada'—Immigration Act,
R.S.C. 1952, c. 325, secs. 7(3), 20, 23.
Appellant came to Canada as a visitor in June 1967 and
applied for admission for permanent residence. In August
1969 an immigration officer, purporting to act under sec
tions 7(3) and 23 of the Immigration Act, R.S.C. 1952, c.
325, reported that appellant's admission would be contrary
to the Act and Regulations in that (1) he did not answer
truthfully questions put to him by an immigration officer
contrary to section 20(2) of the Act and (2) he did not
possess an immigration visa contrary to section 28(1) of the
Immigration Regulations. This report was confirmed by a
Special Inquiry Officer who made a deportation order. An
appeal to the Immigration Appeal Board was confined to the
first ground and was dismissed.
Held, the deportation order could not be supported under
sections 20 et seq. off the Immigration Act. Those provisions
applied only to a person "seeking to come to Canada".
Appellant was not such a person in August 1969 because he
had been allowed to come to Canada in June 1967. Nothing
in the record showed that appellant had ceased to be a
non-immigrant in August 1969.
APPEAL from Immigration Appeal Board.
COUNSEL:
René Deguire, Q.C., for appellant.
G. R. Léger for respondent.
SOLICITÔRS:
R. Deguire, Montreal, for appellant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—This is an appeal from
a decision of the Immigration Appeal Board
dismissing an appeal from a deportation order
made against the appellant.
Having regard to the position taken in the
Memorandum of Points of Argument filed in
this Court on behalf of the respondent, it should
be emphasized at this point that the appeal is an
appeal under section 23 of the Immigration
Appeal Board Act, R.S.C. 1970, c. I-3 from the
decision of the Immigration Appeal Board and,
as such, is an appeal only on "a question of
law". Put in another way, this Court has no
jurisdiction on this appeal to grant any relief
except where, on the material before the Immi
gration Appeal Board, that Board should have
given some judgment other than the one that it
did give. On the other hand, the judgment that
the Board gave can only be supported if it was
right in law on the material that was before it
when it gave that judgment. This Court cannot,
on this appeal, look at documents or facts that
were not before the Immigration Appeal Board
at the time that it gave the judgment that is the
subject of this appeal.
The appellant came into Canada as a visitor
on June 25, 1967 and, during the period for
which he was so admitted, launched an applica
tion under the Regulations for "admission" to
Canada for permanent residence.'
While there is, in the record, no evidence with
regard thereto, it would appear that, before such
application was disposed of, the appellant visit
ed an immigration officer, probably pursuant to
an invitation, and was treated as having report
ed under section 7(3) of the Immigration Act,
R.S.C. 1952, c. 325 as it then was, which reads
as follows:
(3) Where any person who entered Canada as a non-
immigrant ceases to be a non-immigrant or to be in the
particular class in which he was admitted as a non-immi
grant and, in either case, remains in Canada, he shall forth
with report such facts to the nearest immigration officer and
present himself for examination at such place and time as he
may be directed and shall, for the purposes of the examina
tion and all other purposes under this Act, be deemed to be
a person seeking admission to Canada.
There is no information on the record as to
what passed between the appellant and the
Immigration Officer at the time of that visit,
which was apparently on, or just before, August
18, 1969, except that contained in the Immigra
tion Officer's report which states that "He has
now reported ... in accordance with subsection
(3) of section 7 ... and, is seeking admission
into Canada for permanent residence".
Probably relying upon the words at the end of
section 7(3), which state that a person reporting
under that provision "shall ... be deemed to be
a person seeking admission to Canada", the
Immigration Officer made a report that purport
ed to be under section 23 of the Immigration
Act, which section reads as follows:
23. Where an immigration officer, after examination of a
person seeking to come into Canada, is of opinion that it
would or may be contrary to a provision of this Act or the
regulations to grant admission to or otherwise let such
person come into Canada, he may cause such person to be
detained and shall report him to a Special Inquiry Officer.
That report, which bears date August 18, 1969,
reads in part as follows:
3. I am also of the opinion that it would be contrary to the
Immigration Act and Regulations to grant him admission
into Canada for permanent residence because he is a
member of the prohibited class of persons described under
paragraph (t) of Section 5 of the Immigration Act in that he
does not fulfill or comply with the conditions and require
ments of the Immigration Act and Regulations by reason of
(a) Subsection (2) of Section 20 of the Immigration Act in
that he did not answer truefully all questions put to him
by an immigration officer at an examination,
(b) Subsection (1) of Section 28 of the Immigration Regu
lations Part I in that he is not in a possession of a valid
and subsisting immigrant visa.
The appellant was supplied with a copy of this
report and given due notice of an inquiry "in
relation to the points raised in the report" with a
warning that, if he did not meet the "require-
ments for landing mentioned in the report", a
deportation order might be made against him.
The Inquiry was held on September 11, 1969.
The evidence given on that Inquiry with
regard to the allegation that the appellant did
not answer truthfully "all questions put to him
by an immigration officer at an inquiry" may be
summarized briefly. There was put in evidence
a statutory declaration signed by the appellant
on April 17, 1968, but no evidence was given as
to the circumstances under which it was made.
From questions put to the appellant, it appears
that certain statements in that statutory declara
tion were made with the knowledge that they
were incorrect. This was substantiated by a
statement made by the appellant to members of
the Royal Canadian Mounted Police on May 7,
1968, which was put in evidence. Pursuant to
questioning the appellant also admitted, in
effect, that he had made a similar incorrect
statement in his application for permanent resi
dence, but that document was not put in
evidence.
With reference to the other possible ground
for not granting the appellant "admission to
Canada", set out in the Immigration Officer's
letter of August 18, 1969, already referred to,
namely, that he was not in possession of a valid
and subsisting immigrant visa, the following
would appear to be the only evidence at the
Inquiry:
1. One of the preliminary questions put to the
appellant was a question whether he carried a
passport or any other document of identity to
which he replied, "Just a passport". After this
in the evidence, there appears the following:
Presented passport of the Republic of China #TK-
126361 issued at the Chinese Embassy in Jamaica 18th
May 1967 until the 18th May 1970.
On Page 12 Canada N.I. visa #312 valid until October
15th, 1967 issued Port of Spain, Trinidad, 15th June
1967.
Page 13 of the passport shows that he arrived at Mont-
real International Airport on 25th June 1967 until 24th
October 1967 status, as a visitor.
There is no indication as to who made this
statement. The passport was not put in evi
dence, although it would seem that the Special
Inquiry Officer retained it without objection
from the appellant.
2. Later in the Inquiry, the following ques
tions were asked and the answers indicated
were given:
Q. Are you in possession of a valid and subsisting immi
grant visa issued by a visa officer?
A. Where?
Q. Were you in possession of an immigrant visa when you
arrived in Canada on June 25th, 1967?
A. I came as a tourist.
At the conclusion of the Inquiry, the Special
Inquiry Officer rendered the following decision:
ON THE BASIS OF THE EVIDENCE ADDUCED AT THE FURTHER
EXAMINATION/INQUIRY HELD AT the Canada Immigration
Centre, 305 Dorchester Boulevard West, Montreal 128.
ON September 11th, 1969, I HAVE REACHED THE DECISION
THAT YOU MAY NOT COME INTO OR REMAIN IN CANADA AS OF
RIGHT IN THAT
1) you are not a Canadian citizen;
2) you are not a person having Canadian domicile; and
that
3) you are a member of the prohibited class described in
paragraph (t) of section 5 of the Immigration Act in that
you cannot or do not fulfill or comply with the conditions
or requirements of this Act or the Regulations by reason
of the fact that:
a) you are a person described under subsection (2) of
section 20 of the Immigration Act in that you did not
answer truthfully all questions put to you by an Immi
gration Officer at an examination;
b) you are not in possession of a valid and subsisting
immigrant visa as required by subsection (1) of section
28 of the Immigration Regulations, Part 1, of the Immi
gration Act.
I HEREBY ORDER YOU TO BE DETAINED AND TO BE
DEPORTED.
On the hearing of the appeal to the Immigra
tion Appeal Board, counsel for the appellant
indicated that he was challenging only "subpara-
graph (a) of paragraph (3) of that decision".
Upon his making that statement, the Chairman
of the hearing said:
So, therefore, you are contesting the validity of the order of
deportation because subparagraph (a) of paragraph (3) is the
essence of the order of deportation.
It would seem that the balance of the hearing of
that appeal proceeded on that view of the
matter. At no time did counsel for the Minister
contend that the validity of the deportation
order could be supported on subparagraph (b) of
paragraph (3) even if subparagraph (a) could not
be supported.
The Minister put no evidence concerning
either of the grounds for deportation before the
Immigration Appeal Board, apparently relying
on the evidence that was put before the Special
Inquiry Officer.
Counsel for the appellant based his appeal on
a contention that the finding by the Special
Inquiry Officer that the appellant did not
answer truthfully all questions put to him by an
immigration officer at an examination was
wrong in law because of a charge brought
against the appellant under the Immigration Act
of which he was acquitted.
I am of opinion that the deportation order
made against the appellant cannot be supported.
It was made under the group of provisions in
the Immigration Act beginning with section 20. 2
Those provisions only apply, of their own force,
to a person "seeking to come into Canada" and
the appellant was not, in August and September
1969, such a person, because he had been
allowed to come to Canada in June of 1967 and
had stayed there at least until September 1969.
The only possible authority for applying those
provisions to authorize the deportation order, of
which I am aware, is section 7(3). I repeat that
provision for convenience:
(3) Where any person who entered Canada as a non-
immigrant ceases to be a non-immigrant or to be in the
particular class in which he was admitted as a non-immi
grant and, in either case, remains in Canada, he shall forth
with report such facts to the nearest immigration officer and
present himself for examination at such place and time as he
may be directed and shall, for the purposes of the examina
tion and all other purposes under this Act, be deemed to be
a person seeking admission to Canada.
The only possible basis for applying this provi
sion in the circumstances of this matter is the
statement of the Immigration Officer in his
report of August 18, 1969 that the appellant
"has now reported to the undersigned in accord
ance with subsection (3) of section 7 of the
Immigration Act and, is seeking admission into
Canada for permanent residence". Nothing has
been put in the record to show what in fact
happened. In particular, there is nothing to show
that the appellant ceased to be "a non-immi
grant" or to be "in the particular class in which
he was admitted as a non-immigrant". On the
other hand, it does appear that the appellant
had, in 1967, applied under Regulation 34 as
"an applicant in Canada" to be admitted "for
permanent residence" and that his application
had received favourable consideration. That
being so, the probability would seem to be that
the period of his stay in Canada as a visitor had
been extended, either expressly or impliedly,
during the period taken to dispose of his
application, and it is clear from the letter written
to him by the Department on August 22, 1969,
that it had not been disposed of at that time. If
such an extension had been granted, the appel
lant did not cease to be a non-immigrant.
I am of the view that there was, in the circum
stances, no factual basis for invoking section
7(3) and that the deportation order is therefore
invalid.
Having reached that conclusion, there is no
necessity to deal with the specific grounds on
which the deportation order was based except
to say that, in my view, as I think appears from
'my review of the evidence, there was no evi
dence before the Immigration Appeal Board on
which either subparagraph (a) or (b) could be
supported. In saying this, I am not overlooking
the burden of proof in section 27(4) but, in my
view, when it is proposed to base action on a
specific fact, the onus of disproving it does not
arise until the person against whom it is alleged
is given sufficient indication of what is alleged
to be in a position to disprove it.
I should also mention the judgment granting
leave to appeal in this case which states that
leave to appeal is granted on the question set
out therein. The Court is not, however, restrict
ed to that question. See Leiba v. Minister of
Manpower and Immigration [1972] S.C.R. 660,
at page 669. That does not mean, of course, that
the respondent should be deprived of an oppor
tunity to prepare himself to argue questions
other than the one spelled out in that judgment.
We understand from counsel for the respondent
that he is satisfied that we have today given him
all the opportunity that he requires.
We are all agreed that the appeal should be
allowed, that the judgment of the Immigration
Appeal Board should be set aside and that the
deportation order should be quashed.
PRATTE J. and PERRIER D.J. concurred.
' This fact appears from the evidence before the Special
Inquiry Officer and the Board. It also appears that the
appellant was told that he had been found to have complied
with the requirements of the Regulations. None of the
relevant documents are in the record.
2 20. (1) Every person, including Canadian citizens and
persons with Canadian domicile, seeking to come into
Canada shall first appear before an immigration officer at a
port of entry or at such other place as may be designated by
an immigration officer in charge, for examination as to
whether he is or is not admissible to Canada or is a person
who may come into Canada as of right.
(2) Every person shall answer truthfully all questions put
to him by an immigration officer at an examination and his
failure to do so shall be reported by the immigration officer
to a Special Inquiry Officer and shall, in itself, be sufficient
ground for deportation where so ordered by the Special
Inquiry Officer.
23. Where an immigration officer, after examination of a
person seeking to come into Canada, is of opinion that it
would or may be contrary to a provision of this Act or the
regulations to grant admission to or otherwise let such
person come into Canada, he may cause such person to be
detained and shall report him to a Special Inquiry Officer.
24. (2) Where the Special Inquiry Officer receives a
report under section 23 concerning a person, other than a
person referred to in subsection (1), he shall admit him or let
him come into Canada or may cause such person to be
detained for an immediate inquiry under this Act.
28. (1) At the conclusion of the hearing of an inquiry, the
Special Inquiry Officer shall render his decision as soon as
possible and shall render it in the presence of the person
concerned wherever practicable.
(3) In the case of a person other than a person referred to
in subsection (2), the Special Inquiry Officer shall, upon
rendering his decision, make an order for the deportation of
such person.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.